Mariani v. Ramin Hodjati, M.D. , 148 A.D.3d 495 ( 2017 )

Mariani v Ramin Hodjati, M.D. (2017 NY Slip Op 01826)

Mariani v Ramin Hodjati, M.D.

2017 NY Slip Op 01826

Decided on March 15, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 15, 2017
Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, JJ.

805006/13 -3400 3399 3398

[*1]Ruth Mariani, Plaintiff-Appellant,

v

Ramin Hodjati, M.D., et al., Defendants-Respondents.

Sanocki Newman & Turret, LLP, New York (David B. Turret of counsel), for appellant.

Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for Ramin Hodjati, M.D., respondent.

Kaufman Borgeest & Ryan LLP, Valhalla (David Bloom of counsel), for Isabella Geriatric Center, respondent.

Judgments, Supreme Court, New York County (Alice Schlesinger, J.), entered March 17, 2016, dismissing the complaint as against defendants, respectively, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 16, 2015, which granted defendant Isabella Geriatric Center's motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment in said defendant's favor.

In opposition to defendants' uncontested prima facie showing that they did not deviate from the accepted standard of medical care in treating plaintiff's neurologic symptoms and that, in any event, any deviation did not proximately cause her alleged injuries, plaintiff submitted an expert opinion that, had plaintiff been transferred to the hospital, either during the weekend of May 19 and 20, 2012, when she exhibited neurological symptoms, or on May 21, 2012, after those symptoms had resolved, and received different treatment, either her May 23, 2012 stroke would have been prevented or a more favorable prognosis would have resulted. This opinion relies on hindsight and is both speculative and conclusory (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Abalola v Flower Hosp., 44 AD3d 522 [1st Dept 2007]). Among other things, plaintiff's expert failed to address defendant Hodjati's expert's opinions that plaintiff's history of having a stroke 10 years earlier, without recurrence, gave her a low risk of an imminent stroke, and that, following the 2012

stroke, plaintiff returned to her baseline level of health, which included left-sided hemiparesis with a slight facial droop.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 15, 2017

CLERK